Policymaking By Pen: Obama's New Twist On Old Strategy

President Obama prepares to sign an executive order mandating that federal contractors be required to raise the minimum wage they pay their workers to $10.10, at the end of a Jan. 29 appearance at the US Steel's Mon Valley Works in West Mifflin, Pa.

Gene J. Puskar
/ AP

Originally published on January 30, 2014 6:48 pm

The reviews are in for President Obama's stepped-up use of executive powers to carry out policies he can't get through Congress.

Republicans think the idea stinks.

Minnesota Rep. Michele Bachmann threatened to sue Obama over his announced intent to use his "unilateral authority" to change rules regarding, for instance, the minimum wage paid to employees by federal contractors.

"One of the most disturbing patterns we've seen in the last five years is a consistent pattern of lawlessness from President Obama," Texas Sen. Ted Cruz said on Fox.

For all their complaints about Obama's high-handedness, though, what they're really objecting to is the substance of the policies he's pursuing. A president's use of executive authority to make policy end runs around Congress is one of those issues where the out-of-power party is always going to disapprove.

"If you look at the responses from Republicans that Obama's acting imperially, as a dictator or a king, I guarantee you that if this was a Republican president, they wouldn't be saying the same thing," says Kenneth Mayer, author of With the Stroke of a Pen: Executive Orders and Presidential Power.

Every president dating back to George Washington has used his executive powers to make and change policy. Obama has actually issued fewer executive orders than his recent predecessors.

What made his rollout of a dozen new ideas for executive orders on Tuesday so striking was its setting — an address before both chambers of Congress.

"It's one thing to act unilaterally," says Mayer, who teaches political science at the University of Wisconsin, "and another thing to highlight it in the State of the Union as a central part of your agenda for the coming year."

A Hazardous Course

Obama runs a risk in abandoning Congress and making new rules on his own.

"It's in your face and it further causes them to drag their feet and not want to work," says Adam Warber, a Clemson University political scientist and author of Executive Orders and the Modern Presidency: Legislating From the White House.

There's also the potential that any policies Obama announces by edict might be written on sand. Unlike statutes, the next president can simply undo any Obama order of his or her choice.

"It can be ephemeral," says George Edwards, a presidential scholar at Texas A&M University. "These are not likely to be historic changes in public policy — not what we're looking for when we say we want solutions to problems."

With Or Without You

But this may be the best strategy Obama's got. At this point in his presidency, Obama realizes Congress is unable to pass much of anything other than an occasional budget bill. The Republican-led House certainly has no interest in pursuing any of his priorities.

Obama might like Congress to move, but failing that he made it clear Tuesday he was ready to act on his own.

He also called on mayors, governors and state legislators to change laws where they live, with Congress unwilling to act on many fronts.

"There was something of a lament in this speech, that he would like Congress to join in," says William Howell, author of Power Without Persuasion: The Politics of Direct Presidential Action. "He's saying the march of progress will go on, with or without you."

Approach Isn't New

Theodore Roosevelt once said, "Oh, if I could only be Congress and president together for just 10 minutes!"

Most presidents have shared that feeling. Obama has issued, on average, 33 executive orders per year during his presidency, compared with about 36 for George W. Bush. Bill Clinton averaged 46 and Ronald Reagan 49.

Reagan once eliminated 300 executive orders with a single pen stroke, but many presidential orders have proved to be surprisingly durable.

In Obama's own case, this approach is nothing new. Many of his most prominent decisions — such as escalating and de-escalating the wars in Iraq and Afghanistan, managing National Security Agency policy, aggressively employing drone strikes and refusing to deport children brought into the country illegally — have been carried out without formal congressional consent.

"It confounds Congress because by taking action the president pre-empts them and keeps them on the sidelines," says Michael Genovese, director of the Institute for Leadership Studies at Loyola Marymount University. "It will be hard for Congress to push back."

What's new is the prominence Obama has decided to give the strategy. He's gambling that he can get away with more on his own than he stands to gain at this point from an increasingly hostile Congress.

"Congress checking out of the lawmaking process does not mean that we won't have laws. It means they're created elsewhere," says Howell, a political scientist at the University of Chicago. "The 'Schoolhouse Rock' story of how policy is made in the United States is looking more and more antiquated."